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SEPARATE OPINION

PUNO, J.: chanrobles virtual law library

The facts are well established. In 1978, respondent Josefina Bacal started as a trial attorney of the Public Attorneys Office.[1 After eight years or in July 1986, she was promoted as Regional Public Attorney, Region X, Cagayan de Oro City. In 1989, she passed the Career Executive Service Examination given by the Career Executive Service Board (CESB) and was conferred eligibility on July 28, 1994. She was given CESO Rank III on January 5, 1985. On November 5, 1997 after eleven years as PAO Regional Public Attorney, she was designated Acting Chief Public Attorney. On February 5, 1998, she was appointed by former President Fidel V. Ramos as Chief Public Attorney. On February 20, 1998, she assumed the position. chanrobles virtual law library

Then came the May 1998 elections. Then Vice President Joseph Ejercito Estrada was elected President. On July 1, 1998, President Estrada appointed petitioner Carina Demaisip Chief Public Defender, viz.:chanrobles virtual law library

Madam: chanrobles virtual law library

You are hereby appointed Chief Public Defender, Public Defenders Office, Department of Justice. chanrobles virtual law library

By virtue hereof, you may qualify and enter upon the performance of the duties of the office, furnishing this Office and the Civil Service Commission with copies of your oath of office. chanrobles virtual law library

She took her oath of office on July 7, 1998. chanrobles virtual law library

On July 15, 1998, the Hon, Leonora Vasquez de Jesus, then Head, Presidential Management Staff and Cabinet Secretary, transmitted to Secretary Serafin R. Cuevas, then Secretary of Justice, the appointment of respondent Bacal as Regional Public Defender of Region X. chanrobles virtual law library

At the time of her appointment, respondent Demaisip as Chief Public Defender, was occupying the position of Public Attorney III, PAO, which was four (4) levels below the position of Chief Public Defender. She had no CESO eligibility. She had no personnel to manage. Up to this date, it does not appear on record that she has taken any CES examination despite the lapse of one year. chanrobles virtual law library

On July 22, 1998, respondent Bacal filed a petition in the Court denominated as a petition for quo warranto with preliminary injunction and temporary restraining order. The petition assailed her removal as Chief Public Defender and sought the nullity of the appointment of petitioner Demaisip to the position. chanrobles virtual law library

With due respect, I submit the following theses: chanrobles virtual law library

FIRST. I agree with the well-reasoned ponencia that respondent Bacal was not permanently appointed as PAO Chief. At the time of her appointment, respondent Bacal possessed only the rank of CESO III while the rank equivalent to the position of PAO Chief is CESO I. Under the CES Handbook, a CES eligible incumbent of a CESO position is appointed or conferred by the President the CESO rank equivalent to his position, after an evaluation is made of his performance on theb conducted by the CES Board.[2 To hold that respondent was extended a permanent appointment as PAO Chief would, in effect, assure her of the position for life, irrespective of her subsequent performance evaluation on theb. This would deprive the appointing power and the CES Board of the discretion to assign a more competent officer in the position and would not promote utmost efficiency in the service. Thus, I concur that respondents security of tenure pertains only to rank. chanrobles virtual law library

SECOND. Be that as it may, it is my submission that the appointment of petitioner Demaisip was made with grave abuse of discretion, in violation of the Career Executive Service law and rules, and hence should not be given any legal effect. Reasons: chanrobles virtual law library

(2.A) The position of chief Public Defender belongs to the career Executive Service and its occupant needs a CESO eligibility. Petitioner Demaisip has no CESO eligibility, then and now.chanrobles virtual law library

(2.B) In addition to a CES eligibility, an appointee to the position of Chief Public Defender must have three (3) years of supervisory experience. The Qualifications Standards for the Career Executive Service provides the following requirements: chanrobles virtual law library

Education Bachelor of Laws chanrobles virtual law library

Experience Three (3) years of supervisory experience chanrobles virtual law library

Training None required. chanrobles virtual law library

Eligibility Career Service Executive Eligibility (CSEE) chanrobles virtual law library

Career Executive Service chanrobles virtual law library

As Public Attorney III, petitioner Demaisip was not a supervisory lawyer. She was the one under supervision for she was four levels below the Chief Public Defender. chanrobles virtual law library

(2.C) Part III, Chapter I, Article IV, par. 5c) of the Integrated Reorganization Plan which states: chanrobles virtual law library

Appointment . Appointment to appropriate classes in the Career Executive Service shall be made by the President from a list of career executive eligibles recommended by the Board. Such appointments shall be made on the basis of rank; provided that appointments to the higher ranks which qualify the incumbents to assignments as undersecretary and heads of bureaus and offices an equivalent positions shall be with the confirmation of the Commission on Appointments. The President may, however, in exceptional cases, appoint any person who is not a Career Executive Service eligible; provided that such appointee shall subsequently take the required Career Executive Service examination and that he shall not be promoted to a higher class until he qualifies in such examination.chanrobles virtual law library

At the initial implementation of this Plan, an incumbent who holds a permanent appointment to a position embraced in the Career Executive Service shall continue to hold his position, but may not advance to a higher class of position in the Career Executive Service unless or until he qualifies for membership in the Career Executive Service. chanrobles virtual law library

cannot justify the appointment of petitioner Demaisip. Her appointment paper does not show that she was appointed Chief Public Defender as an exceptional case. Respondent Bacal, on July 13, 1998, even wrote to the President protesting the appointment of Demaisip and urged its recall. Neither the President nor any of his alter egos justified the appointment as an exceptional case. chanrobles virtual law library

(2.D) Even assuming arguendo that the appointment of petitioner Demaisip is an exceptional case, it is subject to the condition that she shall subsequently take the required Career Executive Service examination It does not appear that petitioner Demaisip has taken the required examination. For failure to fulfill this condition, she has forfeited any semblance of a right to continue acting as Chief Public Defender.chanrobles virtual law library

(2-E) In truth, petitioner Demaisip, was not in a position, from the very beginning, to comply with the condition that she must subsequently take the required Career Executive Service Examination. As a mere Public Attorney III, a position four (4) levels below the position of Chief Public Defender, she was not even qualified to take the CES examination because it takes a Division Chief to qualify (CESB Manual) and she has not reached that level. She accepted the position in bad faith well knowing it was legally impossible to fulfill said condition. chanrobles virtual law library

(2-F) In any event, petitioner Demaisip has not taken said Career Executive Service Examination until now despite the lapse of a reasonable time from her appointment. Circular No. 13, Series of 1997 (March 17, 1997) of the Civil Service Commission provides in 3.3. The appointment of a non CES eligible to a CES position shall be temporary in no time and shall not exceed twelve (12) months. Such an unexplained failure is a mockery of the Career Executive Service raison detre in light of the presence within the PAO of lawyers with CES eligibility. As held in Achacoso v. Macaraig,³ a ponencia of Mr. Justice Isagani Cruz, a person who does not have the requisite qualifications for the position cannot be appointed to it in the first place or, only as an exception to the rule, may be appointed to it merely in an acting capacity in the absence of appropriate eligibles. chanrobles virtual law library

(2-G) The amicus curiae brief of the Career Executive Service Board written by Professor Samuel N. Barlongay explains the rationale of the career executive service as follows: chanrobles virtual law library

The career executive service, which constitutes the third level of the career service, was intended to establish a pool of well-trained and development-oriented career executives in the government who are conferred by the President career executive service eligibility and are appointed to ranks (Ranks I, II, III, IV and V) as Career Executive Service Officers (CESO). While they enjoy security of tenure, in the sense that they cannot be removed, suspended or otherwise disciplined except for cause and after due process, the essence of the system, however, is that they can be reassigned or moved from time to time to time from one office or position to another in the interest of the public service and as the need arises without violating their security of tenure. The career executive service thus established was therefore intended to provide for flexibility or mobility, government-wide, in the assignment of career executives for a more dynamic, responsive and effective service at the third level or higher ranks of our bureaucracy. This system was a reaction from the past experience wherein holders of career executive positions cannot be transferred or reassigned without their consent to other departments or offices even if their talents or expertise were badly needed there just because they were deemed to be permanently appointed to specific positions. chanrobles virtual law library

The appointment paper of respondent Bacal can be read over and over again but nothing says it was done in the interest of the public service. There is nothing in Region X which will justify her transfer thereto in the interest of public service. In fact, respondent Bacals case is not a case of transfer. Her appointment as Chief Public Attorney was cancelled and she was extended another appointment as Regional Director. chanrobles virtual law library

(2-H) Respondent Bacal was denied fundamental fairness when she was not given reasonable time and opportunity to upgrade her CESO III rank to CESO I so she could qualify for the position of Chief Public Defender. In this regard, the pertinent law provides:[4 chanrobles virtual law library

Section 7 Career Service. The Career Service shall be characterized by (1) entrance based on merit and fitness to be determined as far as practicable by competitive examination, or based on highly technical qualifications; (2) opportunity for advancement to higher career positions; (3) security of tenure. chanrobles virtual law library

The Career Service shall include: chanrobles virtual law library

(3) Positions in the Career Executive Service, namely, Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officers of equivalent rank as may be identified by the Career Executive Service Board all of whom are appointed by the President. chanrobles virtual law library

Section 8 Classes of Positions in the Civil Service. (1) Classes of positions in the career service, appointment to which requires examinations shall be grouped into three major level as follows:

(a) The first level etc.

(b) The second level etc.

(c) The third level shall cover positions in the Career Executive Service. chanrobles virtual law library

(2) xxx Entrance in the third level shall be prescribed by the Career Executive Service Board. chanrobles virtual law library

Respondent Bacal was appointed by President Ramos Chief Public Attorney on February 5, 1988. After three (3) months, she was replaced in May 1998. Clearly, she was not given the fair opportunity to perform so she could earn CESO rank I. Herb was given instead to a non CESO. This is no way to encourage professionalism in the career executive service. chanrobles virtual law library

THIRD. The Civil Service Commission (CSC) owed its existence merely to enactment of a law⁵ as the 1935 Constitution laid down only the basic principles of a civil service system. It was only in the 1973 Constitution where an express provision was adopted creating the CSC. The move is not marginally significant. The 1973 Constitutional Convention realized the imperative need for a system to insulate the public service from the evils of the spoils system. In the words of Delegate Gunigundo, xxx the Civil Service created by law has not been able to eradicate the ills and evils envisioned by the framers of the 1935 Constitution; xxx the Civil Service created by law is beholden to the creators of that law and is therefore not politics-free, not graft-free and not corruption-free; xxx that as long as the law is the reflection of the will of the ruling class, the Civil Service that will be created and recreated by the law will not serve the interest of the people but only the personal interest of the few and the enhancement of family power, advancement and prestige.[6 As entrenched in the 1987 Constitution, the enhanced status of the civil service, with its attributes of independence and impartiality, is intended to make it the engine of good government. Our implementing civil service laws were designed to eradicate the system of making appointments primarily from political considerations[7 with its attendant evils,⁸ to eliminate as far as practicable the element of partisanship an personal favoritism in making appointments,⁹ to establish a merit system of fitness and efficiency as the basis of appointments,¹⁰ and to prevent discrimination in appointments to public service based on any consideration other than fitness to perform the duties.[11 chanrobles virtual law library

It cannot be gainsaid that the precipitate and irregular replacement of respondent Bacal as PAO Chief by petitioner Demaisip who was not a CES eligible and did not come from the rank of middle managers effectively eroded and undermined the morale, not only of respondent, but the other CESOs as well, who rose to rank by proven competence and dedication to the service. A healthy respect for the civil service provisions of our Constitution dictates that a CES eligible who has rendered long and honorable service to the government should not be sacrificed in favor of non-eligibles or left at the mercy of political changes. Integrity and pride in civil service, as goals yet to be achieved, demand that the appointment or replacement of CESOs be based on merit and fairness.¹² Positive efforts must be exerted at all times to continue to attract the best qualified for the position. Indeed, the reality is that conditions of government work are less attractive than those obtaining in private employment. Hence, there is the need to ensure that the rise of career men to top positions in the government should be strictly based on demonstrated capability in order to serve as an inspiration to others in the government service. chanrobles virtual law library

FOURTH. I respectfully submit that the appointment of the petitioner who is patently unqualified nay, even disqualified for the position of PAO Chief should not be given force and effect. I am not unaware of the case law that in a quo warranto proceeding the person suing must show that he has a clear right to the office allegedly held unlawfully by another. Absent that right, the lack of qualification of eligibility of the supposed usurper is immaterial. I posit the thesis, however, that respondent Bacal has at least a temporary right to stay as PAO Chief until she is replaced by a qualified appointee properly appointed. It is granted that the Constitution vests in the President the power to appoint and that the exercise of the powers involves a wide swath of discretion. Be that as it may, the Constitution eschews arbitrariness and it never intended that the power to appoint should be exercised with grave abuse of discretion. The exercise of the power has a set limit, the limit that it should not be exercised to violate any of the various norms spelled out in the Constitution. In the case at bar, it should not infringe the merit and fitness principle which is the heart of the civil service system. The appointment of the petitioner clearly violates the ideal of meritocracy. We cannot turn a blind eye to the anomaly of this appointment on the technical ground that in a quo warranto proceeding, we should not focus on the lack of qualification or disqualification of the petitioner Demaisip. It is time we tone this doctrine in appropriate cases where its strict application will perpetuate to a high office a patently unqualified appointee at the expense of many who are highly qualified for the position.chanrobles virtual law library

I further respectfully submit that the bigger issue in the case at bar concerns the constitutional aspect of a quo warranto proceeding --- the need to check the exercise of the power of appointments so that it will not wreak havoc to the Career Executive Service. The court should uphold the rule of law by striking down and all arbitrary exercise of power. It should promote the reign of meritocracy by establishing the civil service as a politically neutral zone. It should encourage careerism and discourage the political pole vaulting of patently unqualified appointees. Towards these ends, the Court should not allow petitioners appointment to prevail on the thin and technical ground that in quo warranto suit, her lack of qualification is irrelevant. Such ruling makes law a meaningless abstraction, technically neat but an intolerable anomaly on the effective workings of the civil service system. chanrobles virtual law library

Lest we forget, the office at the vortex of the controversy at bar is the Public Assistance Office. This is the lead office of the State in its effort to give effective legal assistance to the poor and powerless of our people. We can take judicial notice of the fact that it handles most of the death penalty cases involving the indigents in our society. Needless to state, the PAO is a vital cog in our system of equal justice and it cannot be allowed to fail in its noble mission. It can only succeed if its head office is the best of the available qualified eligibles. chanrobles virtual law library

Prescinding from these premises, I respectfully submit that while petitioner Bacal has no permanent right as Chief Public Defender, she has, nevertheless, a temporary right to stay as Chief Public Defender, until a qualified appointee is named by the President to the position. The appointment of petitioner Demaisip has absolutely no color of validity and cannot be given any effect on technical grounds. chanrobles virtual law library

I so vote.

[1 It was then known as citizens Legal Assistance Office (CLAO).

[2 P. 22, Performance and Evaluation.

[3 195 SCRA 235, 239.

[4 EO 292, Revised Administrative Code of 1987 on the Civil Service Commission.

[5 Republic Act 2260 (also known as the Civil Service Act of 1959), as amended by Republic Act 6040.

[6 Bernas The 1973 Philippine Constitution, 1974 ed., Article XII (B), section 1, p. 523, citing the February 18, 1972 Session of the Constitutional Convention.

[7 Birmingham v. Wilkinson, 239 Ala 199, 194 So. 548; Hanley v. Murphy, 40 Cal 2d 575, 255 P2d 1; People ex rel. Balcom v. Mosher, 163 NY 32, 57 NE 88; State ex rel. Buckman v. Munson, 141 Ohio St. 319, 25 Ohio Ops 455, 48 NE2d 109; Knoxville v. Smith, 176 Tenn 73, 138 SW2d 422.

[8 Birmingham v. Wilkinson, supra; Fallon v. Nicholson, 136 Colo 238, 316 P2d 1054; People ex rel. Akin v. Kipley, 171 III 44, 49 NE 299, 170 US 182, 42 L. Ed 998, 18 S. Ct. 550; Gervais v. New Orleans Police Dept., 226 La 782, 77 So 2d 393.

[9 Civil Service Board v. Warren, 74 Ariz 88, 244 P2d 1157; State ex rel. Kos v. Adamson, 226 Minn 177, 32 NW2d 281.

[10 Gervais v. New Orleans Police Dept., 226 La 782, 77 So 2d 393; Hawkes v. Unemployment Compensation Board of Review, 145 Pa Super 465, 21 A2d 485.

[11 Philips v. De Las Casas, 215 Mass 502, 102 NE 717.

[12 #3 Goals and Objectives, Career Executive Service Handbook, p. 4.